Unfair Commercial Practices Directive, Chapter 2, Article 5, 1. Unfair Commercial Practices Directive, Chapter 2, Article 5, 2. Unfair Commercial Practices Directive, Chapter 2, Article 5, 4. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 4.

(1) it can be assumed that the "average consumer" obtains a minimum of specific and technical information to help him make his decision when buying a sophisticated product (such as a computer).

(2) When a consumer buys a computer, it is not material for a consumer to know the price of the operating system included with the computer. What is most important for the consumer, is to know the overall price of the computer offered for sale.

The defendant (UFC) reproached DARTY for selling computers that were pre-equippped with an operating system, without allowing the consumer to refuse the operating system, without informing the consumer of this possibility, and without indicating the price of every product present in the package. UFC argued  that this kind of commercial practice violates article L. 122-1 of the French Consumer Code (which prohibits conditional sales).

UFC argued that DARTY concealed "essential" information to the clients, which were useful to them in order to make their purchase decision, in violation of article L. 121-1 of the French Consumer Code.

  

(1) The court recalled that, regarding the omission of information, the UCP Directive (and its French implementation, in article L. 121-1 of the French Consumer Code) only requires material information (i.e., information without which the consumer may make a different transactional decision) to be brought to the attention of the consumer.

The UCP Directive takes as benchmark the "average consumer", who is well informed and reasonably observant and circumspect, taking into account the social, cultural and linguistic backgrounds.

Therefore, according to the court, one might well consider that when the average consumer plans to acquire a sophisticated product, as in this case, he shall first obtain a minimum of specific and technical information to help him make his decision. This information varies according to his personal abilities in this area, which will supplement the material information that the seller himself will have provided in accordance with its obligations.

(2) According to the court, the price of the operating system is not material, even though the information can be taken into account at the time of purchase. According to the court, what is most important for the consumer, is to know the overall price of the item offered for sale. Moreover, the court stated that UFC had not shown that differentiated information would be essential to the decision making process of an average consumer.

The court thus held that the undisclosed information was not likely to cause an average consumer to make a purchase decision he would not otherwise have made.

(1) How does the UCP Directive interpret the notion of "material information" in relation to article L. 121-1 of the French Consumer Code (regarding an all-inclusive price) for a combined offer?

(2) Is the omission of information considered as a deceptive practice in respect of combined offers?

 

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UFC's claims were dismissed.